Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s arguments, filed 04/08/2026, with respect to the rejection(s) of claim(s) under 35 USC 102 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Sandler U.S. Patent #7,733,485 in view of Bunce U.S. Publication 2011/0027914.
With respect to applicants’ arguments and amendments regarding the rejection of claims under 35 USC 112, some were successful and have been withdrawn. Others were not and are maintained. And still as a result of the claim amendments, new rejections under 35 USC 112 are noted below.
Claim Interpretation
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This application includes one or more claim limitations that use the word “means,” and are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “means for performing an imaging particle analysis: and “means for making available the at least one particle size parameter” in claim 25.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-25 and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to claim 1, the limitation “sample area which is horizontal” is indefinite. Without a structural relationship to the rest of the claimed structure, it is unclear how the “horizontal” alignment relates to the rest of the claimed limitations. Without a relationship, the device can be turned any way in order for the sample area to be aligned horizontally with respect to our usual frame of reference, the Earth. Correction is required.
With respect to claims 11, the limitation “when a minimum detectable particle size is below a predetermined threshold” lacks antecedent basis since so actual particle size was determined previously, only particle size parameter. It is unclear if the particle size parameter is the same as particle size or if particle size is determined in an unclaimed step. Clarification is required.
With respect to claim 14, “determining a deviation of the least one particle size parameter” is unclear as to what the parameter is compared to since a deviation is a change. The deviation may be with respect to the two images, over time, compared to a reference or threshold, or some other comparison data. Clarification is required.
With respect to claim 18, the limitation “extrapolating the particle size distribution for particle sizes below a minimum detectable particle size based on the extracted particle size distribution” is a limitation in a circle. The particle size distribution is extrapolated based on the extrapolated particle size distribution? Also, it is unclear where the minimum detectable particle size is determined and how particle sizes are compared to it since in claim 1 only particle size parameters or shapes are determined, no actual particle size. Clarification is required.
With respect to claim 20, the limitation “with regard to particles of a predetermined size only” lacks antecedent basis since it was never described that particle size is ever determined. There are missing method steps. Clarification is required.
With respect to claim 25, the phrases “means for performing an imaging particle analysis: and “means for making available the at least one particle size parameter" is being interpreted as means plus functions limitation however, the specification fails to directly tie the physical structure associated with the means to carry out the defined function. Although the entire specification describes performing image particle analysis and measuring size parameters, it isn’t clear what structure specifically is intended as the means to perform the method. For 112f, the “means” must be tied to specific structure as a definition of the metes and bounds of that means. If one employs means plus function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. See MPEP 2181 II. Correction is required.
The balance of claims are likewise rejected for failing to correct the deficiencies in the above rejected claims upon which they depend.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 21, 22, 23, 24, and 27 rejected under 35 U.S.C. 103 as being unpatentable over Sandler et al. U.S. Patent #7,733,485 in view of Bunce et al. U.S. Publication 2011/0027914.
With respect to claim 1 and 27, Sandler et al. discloses a measuring system for measuring a granular sample comprising:
Providing a sample of solid particles to be analyzed in a predefined sample area (Figure 1 and Figure 7, sample of solid particles = powder sample 1, predefined sample area = plate 2 or sample container 30, Col.4, l 43-45, Step A)
Taking at least one digital image of the sample of solid particles with a camera of a mobile computer device or a camera connected to a mobile device (Figure 1 and Figure 7, camera = 5, Step B, Col.1, l 60-63, Col.4, l 48-53, wherein the camera is connected to a portable computer = camera connected to a mobile device)
Performing an imaging particle analysis of the at least one digital image for extracting at least one particle size parameter or at least one particle shape parameter of the population of particles identified in the at least one digital image (Col.5, l 15-27, Col.2, l 4-22)
Making available at least one particle size parameter or at least one particle shape parameter via an interface via a machine interface or a data storage medium (Col.4, l 48-53, inherent that the calculations are saved somewhere within the computer at least temporarily = data storage medium)
Wherein the predefined sample area is a two dimensional sample area which is horizontal (Col.4, l 54-56)
The camera is aligned plane-parallel to the predefined sample area (Figure 1, camera =5, surface =2)
The predefined sample area is translucent, different from the color of the solid particles (Col.3, l 8-10)
However, Sandler fails to disclose the predefined sample area has a specific color different from the color of the solid particles or the predefined sample area is a light emitting luminous surface.
Bunce et al. disclose a sample plate system and method comprising:
Providing a sample of solid particles to be analyzed in a predefined sample area (P.0127)
Taking at least one digital image of the sample of solid particles with a camera (P.0129)
Performing an imaging particle analysis of the at least one digital image for extracting particles in the at least one digital image (P.0129)
Wherein the predefined sample area has a specific color different from the color of the solid particles or the predefined sample area is a light emitting luminous surface (P.0129, P.0130, P.0145)
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the color contrast sample area or the luminescent sample area of Bunce for the sample area of Sandler since Bunce discloses the interchangeability between a transparent surface (like in Sandler) and its equivalency with a color contrasting surface or a surface with luminescence markers. One of ordinary skill in the art would be capable of selecting from these known art equivalents the type of background surface on which to photograph particles in order to maximize the contrast and therefore raise the sensitivity of the image to smaller particles.
It should be noted that for claim 27 drawn to instructions on a computer readable medium, the limitations regarding the predefined sample area is not limiting since the computer instructions are not tied to what sample is being considered (see MPEP 2115)
With respect to claim 2, 3, 4, 7, 8, 12, 13, 14, 21, 22, 23, and 24, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. In addition, Sandler discloses:
2- Wherein the mobile computer device comprises a human interface device (Figure 7, portable computer 70 has a keyboard = human interface device)
3- The mobile computer device is selected from a portable computer (Col. 4, l 51-53)
4- the camera is configured to take images in the visible spectrum (Col.3, l 31-33, wherein CCDs are configured for visible light, among other wavelengths, Col.5, l 3-5, conventional camera = inherently visible spectrum)
7- the predefined sample area is a two-dimensional sample area (Figure 7, wherein from each side of the container 30, the sample area is two-dimensional)
8- the particles in the sample are aggregates (Col.2, l 39-41, wherein aggregate is defined as a mix of materials = multi-component samples)
12- wherein the at least one particle size parameter extracted comprises the particle size distribution of the population of particles identified in the at least one digital image (abstract, Col.5, l 19-28, grain-size distribution)
13- generating an outline image for each of the at least one digital image and making the outline image available via a machine interface (Col.5, l 15-20, wherein gray-tone vector = outline)
14- the at least one digital image is at least two digital images and performing the imaging particle analysis for each of the digital images and by taking into account each of the at least one particle size parameter individually extracted from the at least two images, determining a deviation of the at least one particle size parameter(Col.2, l 4-17, wherein each image (screen) has percentage mass fraction determined = particle size parameter, deviation = grain size distribution)
21- assigning at least one attribute to the sample of solid particles (Col.5, l 10-14, wherein attribute = segregation or coarseness)
22- the method is at least partly performed on the mobile computer device (Col.4, l 46-52)
23- the image analysis or the making available is conducted on a separate computer device which is different from the mobile computer device (Col.4, l 48-52, Figure 7, wherein the computer 70 is separate from the camera 5)
24- the image is stored on an external computer device (Col.4, l 48-51, image stored on capture card or USB)
With respect to claim 5 and 6, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the resolution of the camera and that the sample area comprises a reference scale and/or has a known size.
It would have been obvious to one of ordinary skill in the art at the time of the invention to select a resolution of at least 2 megapixels since it has been held that selecting an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215. In this case the camera resolution is a result effective variable that determines the scale that can be detected. One of ordinary skill in the art recognizes that the resolution of the camera is a balance between noise, sensitivity, and cost and selecting the optimum value is within ordinary skill.
It would have been obvious to one of ordinary skill in the art at the time of the invention to have a known sample area size since this is essential for selecting the resolution of the camera and to calculate the size distribution. Knowing the area that the sample covers or having a reference scale is essential to give meaning and scale to the image.
With respect to claim 9, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the camera is aligned so that a share of the sample area in the image is maximized.
It would have been obvious to one of ordinary skill in the art at the time of the invention to align the camera such that the sample area is maximized in the image since this optimizes the image efficacy and minimizes noise. Aligning the camera on the subject is common sense.
With respect to claim 10, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose a minimum detectable particle size is calculated by taking into account resolution, sample size in image, and length of sample area.
It would have been obvious to one of ordinary skill in the art at the time of the invention that minimum detectable particle size being calculated based on the resolution of the camera, the length of the sample in the image, and the length of the actual sample is basic image analysis mathematics and one of ordinary skill in the art would acknowledge this is a realistic way to understand the limits of an inspection.
With respect to claim 11 and 15, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose generating an warning to a user if the minimum detectable particle size or the deviation within image comparisons is beyond a threshold.
Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to provide a warning if measurements are not within an expected threshold or effective threshold. In this case, if particles of a certain size cannot be measured or the images have too large a deviation, alerting the user prior to performing erroneous measurements would save time and energy. A warning alert from a threshold comparison is just an automated way to detect an error early.
With respect to claim 18, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose that if the particles size is below the threshold the particle size distribution is extrapolated.
It would have been obvious to one of ordinary skill in the art at the time of the invention to extrapolate particle size based on the most relevant information since this is traditional in data interpretation. Extrapolating data beyond the existing models is well known in the art and allows the ability to provide some sort of measurement even if the accuracy is not as high as for within thresholds.
Claims 16, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sandler U.S. Patent #7,733,485 in view of Bunce U.S. Publication 2011/0027914 and further in view of Laitinen et al. “Does a powder surface contain all necessary information for particle size distribution analysis?”.
With respect to claim 16, 17, and 19, Sandler in view of Bunce discloses all of the limitations as applied to claim 1 above. However Sandler fails to disclose the at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size, mean diameter, Dx value and/or fineness modulus. Additionally, Sandler fails to disclose the at least one particle size parameter comprises a deviation form a predefined nominal value and the at least one particle shape parameter extracted comprises roundness, sphericity, aspect ratio, roughness, solidity, flakiness index, shape index, percentage of crushed and broken surfaces, and/or angularity.
Laitinin discloses image analysis for particle size distribution comprising:
The at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size or mean diameter (Table 1, Page 222, bottom of first column into top of second column)
The at least one particle size parameter extracted comprises a deviation from a predefined nominal value or distribution (Table 1, Page 22, bottom of first column into top of second column)
The at least one particle shape parameter extracted comprises roughness (Page 217, second column, “bring up issues concerning comparisons of different sizing methods, the number of analyzed particles and elements in shape and texture quantification of particles”)
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the data analysis of Laitinin including the type of particle parameter selected since Sandler uses Laitinin as prior art and considering their shared goals of measuring grain size distribution, one of ordinary skill in the art would look to Laitinin to see what other parameters can be measured from the same method as described in Sandler. Using the average particle size diameter, a deviation from the nominal value, and a shape parameter as described by Laitinin as known particle parameters that can be used with like methods, would result in more information from a single measurement, saving time and money.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA CAROLE BRYANT whose telephone number is (571)272-9787. The examiner can normally be reached M-F, 12-4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara Geisel can be reached at 571-272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/REBECCA C BRYANT/ Primary Examiner, Art Unit 2877
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